Justice Amy Coney Barrett, Radio Appearance, and Gun News Roundup

October 26, 2020


Matthew Hoy

Amy Coney Barrett is slated to be confirmed by the Senate later today and sworn in as a Supreme Court justice by Clarence Thomas later tonight. Barrett appears to be a solid fifth vote for removing the Second Amendment from its second-class right status.

Why Amy Coney Barrett Scares Gun Grabbers

Barrett's dissent in a gun right's case during her tenure on the 7th Circuit Court of Appeals has gun control advocates scared—likely rightly—that she will look askance at their perpetual attempts to erode "shall not be infringed" into: "You better have a good reason. No. That's not a good reason."

The case, Kanter v. Barr, can be found here. [PDF Format] Rickey Kanter was convicted of mail fraud after selling therapeutic shoe inserts that he advertised as Medicare-approved, and billing Medicare for them, when they were not. Kanter was sentenced to a year and a day in federal prison, two years of supervised release, paid a criminal penalty of $50,000 and reimbursed Medicare to the tune of $27 million in a civil settlement.

Kanter wanted to purchase a firearm, but his felony conviction prevented that, according to both Wisconsin state and federal laws. He sued, alleging that this was a violation of his Second Amendment rights. First Amendment rights are generally not treated similarly. There's no prohibition on convicted felons worshiping as they please, speaking as they please, etc.

In a 2-1 vote, the 7th Circuit affirmed the district court's ruling finding that the blanket rule against allowing felons to have firearms is "substantially related" to the government's interest in curbing gun violence.

In her dissent, Barrett went into great historical detail to determine that prohibitions on felons having guns was consistently related to the fact that the government wanted to keep firearms out of the hands of violent people.

Neither Wisconsin nor the United States has introduced data sufficient to show that disarming all nonviolent felons substantially advances its interest in keeping the public safe. Nor have they otherwise demonstrated that Kanter himself  shows a proclivity for violence. Absent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.

There are plenty of people in the pro-2A community who believe that once someone has served their time they should have all their rights restored. They believe if the person can't be trusted with a firearm, then they probably should still be in prison. However, this is an area where many Second Amendment advocates would have little issue with a compromise that would allow non-violent felons like Kanter some process to regain the right.

Restricted Arms on the Radio

Last Thursday, I was on local radio with Dave Congalton to discuss the historic surge in firearms purchases. You can listen to the audio below. The article that prompted Congalton to ask me on, and the one he quotes from periodically during our discussion, is this NBC News article.

The story should come as little surprise to most who follow firearms-related news.

California firearm legal news

When I appear on the radio, and especially when I guest host, I do my best to come over-prepared. So, in case we didn't have callers who were interested in discussing the record increase in gun sales, I was ready with updates on some of the legal maneuverings going on in the Golden State.

Rupp v. Becerra

On Oct. 8, a three-judge panel of the Ninth Circuit heard oral arguments in Rupp v. Becerra taking on California's ban on so-called "assault weapons." You can watch the oral arguments below.

Among the state's arguments for its cosmetics-based ban on assault weapons that have a pistol grip, adjustable stock, etc., was that those features made the weapon more accurate and therefore deadlier when used in a mass casualty attack. Pro-2A lawyers highlighted that the state wants people using guns for self-defense that are less accurate.

Rhode v. Becerra

The Rhode v. Becerra case tackles California's first in the nation ammunition background check system. Plaintiffs won at the District Court level with a preliminary injunction striking down the state's system. Less than 48 hours later, the Ninth Circuit put the injunction on hold while they determine if Judge Roger T. Benitez abused his authority. Oral arguments are scheduled for Nov. 10.

Almost two weeks ago, both parties filed their supplemental briefs on a question asked by the circuit court: Whether there exists "persuasive historical evidence establishing the regulation at issue imposes prohibitions that fall outside the historical scope of the Second Amendment."

The state's arguments on that question boil down to little more than "we have a long history of regulating guns, therefore we can regulate ammunition."

Duncan v. Becerra

We are still awaiting word on whether the full Ninth Circuit will take up Duncan v. Becerra—which struck down California's near 20-year ban on magazines holding more than 10 rounds. The Pro-2nd Amendment side won at the district court and three-judge circuit court panel levels. California has asked for an en banc review of the decision, which would consist of the chief judge of the circuit, liberal Sidney Thomas—a Clinton appointee—and 10 other judges chosen at random to hear the case.

We are still waiting on a vote by the circuit's judges on whether to take the case en banc. Unlike what happened several years ago with the Peruta v. San Diego County which overturned a 2-1 panel decision that would have made California, and all other states covered by the Ninth Circuit "shall issue" for concealed carry permits, the composition of the circuit has changed significantly with President Donald Trump's appointees. An en banc decision overturning the lower court rulings is less likely today simply because the liberal-to-conservative ratio of judges is no longer as lopsided as it once was. The chances of getting a pro-Becerra ruling from en banc, while still more likely than not, it is no longer quite the sure thing it once was.

Finally, Joe Biden's Greatest Gun Training Fails

With the election upon us, and having discussed the fact that there are likely hundreds of thousands of first-time gun owners out there, I wanted to warn people about taking gun use and self-defense advice from the aspiring president.

At various points, Biden has advised people to shoot through a closed and locked door, advised his wife that if she's concerned for her safety to walk out onto her balcony and fire two shotgun blasts into the air, and told cops they aim for the legs when they draw their guns.

These are all uniformly bad ideas, in some cases illegal, and in all cases stupid.

Don't be like Joe.

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